I’m a journalist. I’ve been a journalist a long time. It’s a bit of an unforgiving business at times but most of the journalists I know do their best to be honourable under duress.

The internet has raised a lot of issues, not least that of people taking content from media companies without authorisation. They hate it which is why we have ACTA, SOPA, PIPA and a host of other acronyms aimed at stopping people pinching stuff from big corporations (arguably with the potential of doing huge damage to the web through the ham fistedness with which the legislation has been drafted).

However some big corporations are less forthcoming when they’re caught pinching stuff from the likes of you and me. As I’ve now made clear on my ‘about’ I’m a fan of Creative Commons type licenses. If you’re a blogger or I’ve written about something you care about and you want to borrow something in a good cause or simply in the spirit of a wider web you can but ask. If you’re not making money I won’t ask for any. Call it the joy of being part of the blogsphere.

However if you’re a million selling newspaper owned by a couple of billionaire brothers living in tax-exile in a bat-infested castle on their own island off the coast of France I would like to reach a commercial understanding.

This week a couple of newspapers ‘borrowed’ a photo of Mary-Ann Ochota from this site without asking. Mary Ann got caught up in a bit of a row about Time Team, a programme which she co-presents. In her defence I should say that she is really good company, a very decent soul and, sickeningly, proof that you can have both looks and brains.

One of the papers, not one I read often, was remarkably honourable about their error and settled very quickly. The other was The Daily Telegraph. I proposed a settlement along the lines agreed with their competitor. Instead I got this reply from their Deputy Picture Editor Matthew Fearn:

Dear Mr Kent

Thank you for your 8 February email, which has been passed to me.

You will appreciate that ours is a fast-moving industry and the ever-shifting nature of news – in particular with the advent of online publishing – is such that it is not always possible to secure copyright clearance before pictures are published.

Our industry therefore adopts the stance that if a picture has no overwhelming artistic value and if there is no issue of exclusivity (ie it is already being published online or elsewhere) then no reasonable copyright owner will object to its being republished in exchange for a reasonable licence fee. The only alternative to such a stance is not to publish pictures at all unless they come from a commercial library, the available range of which will inevitably be inadequate.

Clearly it is open to the copyright owner to adopt the position that we have “violated” their copyright. The legal position in cases of breach of copyright is generally that the publisher is required to pay double the industry rate to take account of any ‘flagrancy’ of the breach. Inevitably the outcome is that publishers tend not to use pictures from such copyright owners in future.

In this instance, and in light of what you have told us, we have no reason to doubt that you are the copyright owner for this picture. However the blog from which it was taken gave no indication as to the copyright owner and no contact details. We therefore used it (in fact we inadvertently used it again for some four hours this morning) in the normal way, which is to say that we were always prepared to pay the industry standard rate.

The rate for online-only use of a picture such as this is £25. For using it twice (as we have now done) we would normally pay £50. Were you to adopt a legal route and succeed in proving ‘flagrancy’ (which we deny) we believe you would be awarded £100 in damages in total.

We readily appreciate that the commercial rates available for online picture licences are depressingly low. We have no wish to make life difficult for photographers – our business depends heavily on them – which is why you were immediately offered £200 for a single use of your picture. This was eight times the industry rate. Since we have now used it a second time (albeit only very briefly) we are prepared to increase this offer to £400 in full and final settlement. We note that you are taking legal advice and it therefore seems reasonable to keep this offer open for a period of 24 hours.

We hope this is of some assistance.

Matthew Fearn

Picture Editor

Now I have to say I thought this was a bit rich and, as I doubted it had been legalled by the Telegraph, wrote to their legal department to suggest they make a donation to Leigh Primary School in Kent. Meanwhile I thought I’d help Matthew get to grips with the concept of borrowing other people’s stuff without permission for use in a commercial enterprise. To do so I thought it best to recast his kind letter in a different context to see how it might sound.

Matthew Fearn

Deputy Picture Editor

The Daily Telegraph

Dear Matthew

About your motor. I was passed an email by a colleague and you make your position quite clear. You’re quite obviously upset that I borrowed it yesterday afternoon without asking you.

Now, and I don’t want to be patronising here, we live in a changing world. I move in fast circles. I have places to be, bars to visit, restaurants to enjoy and an unbelievable number of glamorous women to impress.

So there I was yesterday afternoon when I got a call from the hottest girl I know. She wanted me to take her to The Fat Duck and when needs must the devil drives – well actually I drive, but I couldn’t lay my hands on an appropriate vehicle.

Then blow me if I didn’t spot your Aston. Now call me stupid but there it was, parked on the street, in full view of the public. I would have liked to have asked you but, and I’m putting this down to the fact that you don’t know how people like I work, you failed to leave a piece of paper under the wipers with your name, address and number on so I could check first that it was OK for me and Shazelle to take a spin in it.

So, and I accept this, I just opened the door (I’ve got a pick that does most Astons, so no damage), hotwired it and drove down to Bray.

You’ll be pleased to know it wasn’t a wasted trip. Heston is on cracking form, and so is Shaz for that matter. I took some tissues with me so you shouldn’t notice any staining on the leather, not that there’s much room in the back seat of a DB7.

I notice that you use the word ‘stole’. It’s an ugly word ‘stealing’. I’d suggest that all I was doing was making appropriate use of the car. After all it’s designed to be driven and that’s all I did.

But it’s a fair cop. I didn’t ask. So here’s what I’ll do. Normally when I borrow someone’s car for a couple of hours I slip them fifty quid. I know it’s not a lot but what with the number of city boys what can afford Astons these days they’re two-a-penny and it’s easy to find one who never gets out of Canary Wharf and could use a little cash to buy a bit of Charlie to make lunchtime pass faster.

So in view of the misunderstanding I’ll make it a hundred. Mind you, the rule of thumb is that if someone kicks up and demands extra wonga I don’t rent their car again, so you’re doing yourself out of the opportunity to earn the odd fifty quid in future.

Now what with you having roped in yer lawyer and all, perhaps I can go to £200, but there’ll be bad blood between us. Shazelle thinks you’re a bit out of order too. But the offer’s there. I’ll give you 24 hours or I’ll blow it all down Annabel’s.

Cheers

Jonathan

P.S. Sorry about the scratches. I reckon it’ll buff up a treat with a dab of T-Cut so no harm done eh?

I think that sounds perfectly fine, however I somehow doubt Westminster Magistrates would agree. Perhaps they own Astons. There’s no justice.

27 Responses to Dear Matthew, about borrowing yer motor…

I’m always a little nervous about suggesting cooking journalists as I may end up with an apple stuffed in my mouth and hogtied to a spit, however if this is the Telegraph’s public stance I fear they may have set the bar very low for unauthorised use of their own content – at whatever a blog or site normally pays (ie nothing or as good as) times two. It would be a pretty challenging position to defend in court that a paper can set its own rate for other people’s content against their will but not vice versa….

What a bloody brilliant response! Thank you for posting, be interested to know if/how he responds to that. The tone of his original correspondence with you is appalling, clearly he’s had it squeezed through the legal wringer but still manages to infer that you’re to blame for the whole thing. Shocking.

Hi Jonathan, I’m the outgoing editor of Montage Magazine (journal of the Picture Research Association). I’d love to ‘borrow’ your 2 letters to reprint in my very last issue. It’s being paginated now, but I’d like to sling out one of my planned pieces to substitute with yours. (No payment I’m afraid, as all contributions to mag are done by volunteers! )

Q. If every Telegraph reader goes into a newsagent tommorow and ‘borrows’ the first edition, then after reading it, they pass it around to all of their friends, scan it, post it on-line for anyone else to read and finally, after a few hours, they return to the newsagent and carefully place it back on the shelf, how long would it take for the owners, shareholders and staff to cry FOUL??

I think it’s the posting it online that would really rile the Telegraph as it would deprive them of the ad revenue they get from their website. I realise that newspapers are under pressure in the changing media landscape but that’s presumably reflected in the fact they only pay £25 for using pictures online – however that’s no excuse for taking an image and making no effort to offer that £25 first or even for leaving a message so it could be claimed afterwards.

This is a fairly standard response, and reflects, unfortunately the legal position fairly correctly. Aside from the standardised legalese language used in the letter – that is bound to get anyones back up, it would seem to me that you have had a reasonable result. Unless you put a premium on a picture (which you do by including its minimum value in the meta-data – along with your contact details and a copyright mark) I think one should assume that anyone can and will use your picture without your permission and some may pay for it. I certainly do not believe that this is the way that it should be, but is the way it is. The internet acts as both a window for your pictures, and a market place. I think one should assist picture desks and researchers by marking pictures. I also think that it is important to recognise that picture desks work under immense pressure from above in terms of money and how they can spend it. The analogy should be more likened to that of an unlocked bicycle; It is still illegal to steal it, but you also have a responsibility to secure it.

Part of this turns on whether they were taking flagrantly or not. They made no attempt to ask for permission and critically they didn’t leave a comment on the blog saying they’d used it so that we could settle a fee after the fact. The way they acted simply looks like they took the image and hoped I wouldn’t find out.

Breach of copyright is not the same thing as theft. You are probably deprived of nothing whereas he would be deprived of the use of his car. In fact, in the circumstances they’ve probably done you a service. For example I’ve heard of you now, even if I only think of you as someone who doesn’t understand the difference between theft and breach of copyright.

On the contrary I have a pretty good understanding of copyright. They acted to deprive me of part of my living through failing to pay the fee that should have accrued from its use. They made no effort to ensure I would get paid even if only after the fact.
I used the car example quite deliberately because there is a criminal offence of taking where a car is taken and used without the owner’s permission even if there is no intention to deprive him or her of it permenantly. It seemed quite a neat analogy.
As for having done me a favour, Otto, I take that to be a weak attempt at humour. Firstly whether or not you’ve heard of me bothers me not one iota. I’m not motivated by fame or notoriety. Moreover you’ve only come across me because I complained, did so in a sufficiently tongue in cheek way that people tweeted and blogged it and apparently struck a nerve because I’m not alone in thinking big media operate double standards, defending their own copyright and abusing others’ – that wasn’t the Telegraph’s doing.
If you can come up with a more insightful and properly thought through comment do feel free to post it.

It’s a hopelessly incongruous analogy. It’s you who hasn’t thought this through. The laws governing rights to copy and rights of ownership are different for good reason. You have far more to fear from the application of property law to pictures, ideas and words than from your speculated loss of earnings in this case.

Otto, you make unsubstantiated assertions that somehow I’m better off with people pinching my work, making money from it and trying to avoid paying for it but you haven’t bothered to make a case. To borrow a phrase from the late Mr Hitchens – arguments made without evidence can be dismissed without evidence. You say the people who used my pictures have done me a favour but you haven’t explained how – other than, apparently, to have brought me to your attention (and all that has done is resulted in your leaving inadequately argued remarks on my blog). So why don’t you up your game and make a substantive point or leave me to the happy anonymity I enjoyed before the Telegraph’s antics brought you to my door. Many thanks

Wonderfully done! It always bothers me when people that live by copyright (for example the news paper) choose to ignore it when they want to use something for free. It kills me when I see “photogaphers” upset about people stealing their images blithely looking for copies of the latest software to manipulate the photos and downloading music they haven’t paid for.
Keep up the fight, and the good spirit!

I think I live in the wrong country. In the US, most of the comments beneath this post would be something like this:

Your clearly just some stupid rich libral kid. Nobody stoled nothing from you. You probably think Obamacare is real medicine two. Why don’t you go back to San Fransisco with the other hippies, you looser.

Yes, well, I can’t help you with that one. It’s just a shame that a nation that produced leaders like Washington, Adams, Jefferson, Monroe and Madison has come to such a sorry pass. Thankfully we still manage to have a civilised dialogue over here, for the most part – and even Mr Fearn responded in a very civil manner to my reply.

We’re still negotiating but it looks as though I’m going to have to take the legal route. Pity. However I feel that there’s a point of principle at stake herThere needs to be a level of sanction that persuades them that respecting the law makes more sense than breaking it. If a cost benefit analysis tells them that acting in breach of copyright pays then the law becomes meaningless